Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by the International Centre for Trade Union Rights (ICTUR)


  1.1  Businesses impact on human rights in different ways within the UK and abroad. The precise nature of these impacts depends upon the nature of the business and the socio-economic, political and human rights situation in the country concerned.

    — In the UK businesses have a clear and direct impact upon the labour rights of their employees: including trade union rights, such as the right to form and join trade unions, as well as rights such as equality and principles of non-discrimination. For more on the domestic situation please have regard to the submissions prepared by the Institute of Employment Rights.

    — Overseas, and in the developing world in particular, the activities of multinational companies can have a profound influence. Multinationals often dominate industries in developing countries, with the result that their employment conditions set the de facto standard for industry-wide or even generally-applicable terms and conditions. Our submission addresses specifically the nexus of human rights responsibility, supervision and enforcement in the context of the overseas activities of UK businesses.

  UK multinationals in particular may have dominant roles in former colonies. The terms and conditions of employment set by UK multinationals in such situations can have profound impacts upon local labour standards not only in the company concerned but in respect of industry-wide conditions and even in respect of generally applicable national employment standards. UK companies have a responsibility to ensure that the role they play in former colonies in particular is positive, upward, and stabilising.

  1.2  An area of particular concern to ICTUR is the role of global companies in relation to the internationally protected rights of workers to join trade unions for the protection of their interests. This right is recognized by a host of international human rights treaties, including the UN Covenant on Economic, Social and Cultural Rights, along with ILO Conventions 87 and 98, in addition to a host of regional instruments such as the European Convention on Human Rights and the European Social Charter. Also important are the OECD Guidelines for Multinational Enterprises, while reference might also be made to the UN Global Compact, where these rights are also recognized. Quite apart from these international legal instruments, the role of trade unions in TNCs is crucial:trade unions locally, nationally, regionally and globally provide a measure of accountability in the exercise of corporate power, wherever that power may be exercised; trade unions provide a voice for workers and ensure that workers' interests are fully considered before any major decisions are taken; and trade unions help to drive up standards and prevent the exploitation of the weak and vulnerable. We illustrate the problems of British business and respect for human rights standards by giving an account of the activities of what is thought to be the United Kingdom's largest global company, certainly in terms of the number of people employed throughout the world.


  2.1  G4S is a major global security company, created by a merger of Group 4 Falck and Securicor in July 2004. The company is British based, it has been extraordinarily successful, and it is the largest employer quoted on the London Stock Exchange, with a secondary stock exchange listing in Copenhagen.[362] Although it has its headquarters in the United Kingdom, G4S has operations in over 110 countries and over 585,000 employees. The company is thought to be the second or third largest private sector employer in the world, and it is the largest private employer in Africa. Group 4 Securicor operates in 18 African countries: Botswana, Cameroon, Central African Republic, Democratic Republic of the Congo, Gambia, Ghana, Ivory Coast, Kenya, Lesotho, Malawi, Morocco, Mozambique, Namibia, Sierra Leone, South Africa Tanzania, Uganda, and Zambia. In 2005. Profit margins from "New Markets"—which includes Latin America and Asia, as well Africa—have been reported as being 60 % greater than its European margins. According to the company's annual report for 2008, Group turnover increased by 22% to £5.94 billion (US $8.85 billion), pre-tax profits rose by 23% to £416.4 million, and recommended total dividend per share increased by 30%.[363] By way of contrast, according to the CIA, the GDP of Malawi - one of the countries in which the company operates - was only US $ 11.56 billion in 2007.

  2.2  The company courted controversy for several years in the recent past because of labour standards in a number of countries. Despite boasting an impressive Business Ethics Policy (at the heart of which was a commitment to freedom of association and the right to collective bargaining in accordance with local legislation and practice), allegations were made by UNI (a global trade union federation) that these commitments were not always observed in practice. It was alleged—for example—that in Kenya the company refused to recognise the Kenya Guards and Allied Workers' Union, notwithstanding a court order in 2003 that security firms do so 'either as an Association or individually'.[364] Legal proceedings in the following year revealed that there was by then 'no collective agreement',[365] and in 2005 the union was still complaining that it had not been recognised by the company, despite claiming a majority of the employees in membership. It has also been alleged that

    — In Uganda, the Amalgamated Transport and General Workers' Union was refused recognition by G4S, despite the fact that a majority of the employees at the G4S subsidiary voted to form a union. It was claimed that 'G4S used a variety of delaying tactics, from busy schedules to a change in the company's name and address, to avoid recognising the union', and that 'in stark contrast', the other major private security firms in Uganda had recognised the union and negotiated with it as a group 'to raise standards in the industry';[366]

    — In the Democratic Republic of the Congo (where G4S was said to be not only the largest private security firm but also the only multinational company operating in the country), it was claimed that the union Sythac had made repeated attempts to meet the G4S subsidiary to discuss union recognition. Again, it is reported that 'G4S [had] consistently put them off, refusing to meet with them or committing to appointments at G4S offices and then failing to make the proper person available at the time of the appointment'.[367]

  2.3  A particularly notorious case involved Indonesia, wherea serious dispute broke out in 2005 during a merger between two security services entities, PT Securicor Indonesia and Group 4 Falck. PT Securicor Indonesia refused to negotiate with the union in relation to the merger prompting the union to call a strike involving 600 workers. According to the ILO Freedom of Association Committee, in the course of the dispute, 'the employer committed several acts of anti-union discrimination and harassment, including: preventing the union president and officials from entering company premises; dismissing 238 union officials and members in May 2005, refusing to reinstate them in spite of several court orders to that effect; and attempting to coerce and intimidate union members by calling their families'.[368]The strike attracted critical media coverage in the United Kingdom,[369] it led to mass demonstrations against the company outside the British Embassy in Jakarata, and 'the rather difficult strike in Indonesia' was raised in the House of Commons by Kitty Ussher MP.[370] The matter ended up before the Supreme Court of Indonesia,[371] which ordered the company to reinstate and pay compensation to workers who had been dismissed for taking part in a strike that the Court found was legal. Moreover, a complaint was made by the Indonesian union ASPEK against the government of Indonesia to the ILO Freedom of Association Committee, alleging that there had been a breach of ILO Convention 87 (Freedom of Association and Protection of the Right to Organise). Although the dispute was settled by an agreement on 26 July 2006, the Freedom of Association Committee reported as follows—

    960. The Committee observes from the complainant's allegations and the Government's reply that: (i) 308 workers were dismissed by PT Securicor Indonesia in May 2005 for having staged a strike as of 25 April 2005; (ii) all instances, including the P4P, the High Court for State Administrative Affairs and the Supreme Court found that the strike which began on 25 April 2005 was legal and that the employer should reinstate the dismissed workers and pay wages owed; (iii) 24 workers were reinstated on 27 December 2005 pursuant to the order issued to that effect by the Supreme Court after hearing the case in the last instance; (iv) on 28 July 2006 the two parties reached an agreement by which they agreed to terminate the employment relationship between the enterprise and the workers concerned, in return for payment of full compensation.

    961. While taking due note that the two parties have finally reached a settlement agreement, the Committee wishes to recall that no one should be penalized for carrying out or attempting to carry out a legitimate strike (Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 660). In this respect, the Committee requests the Government to specify the circumstances under which only 24 out of 308 workers were finally reinstated pursuant to their dismissal for having participated in the strike which began on 25 April 2005.

    962. The Committee further notes with regret that the Government does not reply to the complainant's allegations concerning the repeated summons of the union President Fitrijansjah Toisutta and members Tri Muryanto and Edi Putra for interrogation by the police and the Prosecuting Attorney as well as the pressing of charges against them on 7 July 2005 for the crime of committing "unpleasant acts" against the company. The Committee recalls that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights (Digest, op. cit., para. 63). The apprehension and systematic or arbitrary interrogation by the police of trade union leaders and unionists involves a danger of abuse and could constitute a serious attack on trade union rights (Digest, op. cit., para. 68). Recalling that the strike which began on 25 April 2005 was declared legal by the competent authorities, the Committee emphasizes that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike (Digest, op. cit., para. 672). The Committee requests the Government to indicate whether the charges brought against the union President Fitrijansjah Toisutta and members Tri Muryanto and Edi Putra for committing "unpleasant acts" against the company are pending before the courts or whether the charges have been dropped. In the event that this matter is still before the courts, the Committee requests the Government to institute an independent inquiry into this matter and, if it is found that the charges were brought for having organized or participated in the peaceful strike which began on 25 April 2005, to ensure that they be dropped immediately and to keep it informed of developments in this respect.

    963. The Committee also notes with regret that the Government does not reply to the allegations concerning acts of harassment against union members and their families, including phone calls at their homes by the company, in the context of the merger between PT Securicor Indonesia with Group 4 Falck and the new management's refusal to negotiate the terms and conditions of employment of the employees, as well as the transfer of a certain number of the employees under new management. The Committee recalls that the Government's obligations under Convention No. 98 and the principles on protection against anti-union discrimination cover not only acts of direct discrimination (such as demotion, dismissal, frequent transfer, and so on), but extend to the need to protect unionized employees from more subtle attacks which may be the outcome of omissions. In this respect, proprietorial changes should not remove the right to collective bargaining from employees, or give rise to direct or indirect threats against unionized workers and their organizations (Digest, op. cit., para. 788). Furthermore, acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize (Digest, op. cit., para. 786).

    964. Finally, the Committee notes with regret that the Government does not reply to the serious allegations made with regard to the Government's failure to ensure an effective mechanism of protection against acts of anti-union discrimination.[372]

  2.4  It is true that the complaint by ASPEK was against the government of Indonesia and not against the company. The company, however, can hardly escape responsibility for conduct that sits uneasily with its Business Ethics Policy commitment to freedom of association. Although it is true that it is the law of Indonesia that was under scrutiny by the Freedom of Association Committee (not for the first time), it was the company's conduct that provoked the complaint, it was the company which chose to take advantage of the legal regime, and it was the company's activity that led to the critical conclusions of the Committee in this case. Yet it is not to be imagined that the allegations against G4S on freedom of association were confined to Africa and Asia (with Nepal being another bone of contention identified by UNI).[373]A major issue was the conduct of Wackenhut, the company's US subsidiary. Several complaints against Wackenhut were made by UNI, though in one case the company was found by the National Labor Relations Board in the USA to have been in violation of the National Labor Relations Act 1935.Thiswas related to anti-union conduct by the employer after an attempt by the union (SEIU) to organize security guards at the IMF building in Washington DC.The company was ordered to cease and desist its anti-union activities following an NLRB finding that

    By telling employees that the International Monetary Fund would respond negatively if employees formed a union, telling employees that the International Monetary Fund contract prohibited unions, threatening employees with the loss or cancellation of the International Monetary Fund contract, as well as the loss of their jobs, if the employees unionized, telling employees that it was aware that they had signed union authorization cards, telling employees that it was nonunion, telling [one employee] that he should transfer to [another] worksite if he wanted to continue his union activity and then asking him whether he intended to continue with union activity, standing next to or near [a second employee] on public property as she attempted to distribute union literature to employees arriving for work, and asking employees about the union activities of other employees, the Respondent violated Section 8(a)(1) [of the National Labor Relations Act].[374]


  3.1  A detailed complaint was eventually lodged against G4S under the OECD Guidelines by Union Network International (a global union federation) on 12 November 2006.[375] The complaint detailed a wide range of alleged shortcomings from around the world relating to what was seen to be a failure of the company to 'contribute to economic, social and environmental progress with a view to achieving sustainable development' (as provided for in Chapter II, para 1), and to 'respect the right of their employees to be represented by trade unions' (as provided for in Chapter IV, para 1(a)) of the OECD Guidelines).The complaint the company had 'chosen to violate national law and drive down standards across the world', was long and detailed and addressed specifically alleged violations in Malawi, Mozambique, Greece, the United States, Israel, Uganda, the Democratic Republic of the Congo, and Nepal. These were said to be among the most egregious cases from around the world, it being claimed also that workers from South Africa, Cameroon, Kenya, India, Indonesia, Morocco, Panama, and other nations 'have gone on strike against G4S or protested over poor pay and conditions within the last year'. The complaints were wide ranging, from low pay, long hours, failure to pay for work done, failure to make severance payments,and failure to make back awards in line with court judgments. In the case of Malawi, UNI claimed that this was one of the ten poorest countries in the world with G4S guards being paid less than $20 a month, a wage claimed not to 'provide for their basic needs'.[376]

  3.2  The OECD Guidelines for Multinational Enterprises (the Guidelines) were first agreed in 1976, following public concern that multinational enterprises were becoming too powerful and unaccountable. The Guidelines may not be binding in a legal sense at the international level, but they are not optional for corporations. Governments have committed themselves to respecting the principles and have established complaints mechanisms and supervisory procedures to this end. Within the parameters of its obligations to the OECD the UK is obliged to ensure implementation. Key provisions of the Guidelines have already been referred to in the preceding paragraph, and it is important to emphasise that unlike many voluntary corporate codes, the OECD Guidelines (i) explicitly adopt all four of the core ILO principles recognised in the ILO Declaration on Fundamental Principles and Rights at Work (1998), as well as (ii) embracestandards on matters which have been excluded from the ILO Declaration (such as minimum conditions of employment and health and safety at work).On freedom of association, the Guidelines require enterprises 'within the framework of applicable law, regulations and prevailing labour relations and employment practices' to

    respect the right of their employees to be represented by trade unions and other bona fide representatives of employees, and engage in constructive negotiations, either individually or through employers' associations, with such representatives with a view to reaching agreements on employment conditions.

  Enterprises are also expected to 'provide facilities to employee representatives as may be necessary to assist in the development of effective collective agreements', and 'provide information to employee representatives which is needed for meaningful negotiations on conditions of employment'.

  3.3  Since the 2000 revision of the OECD Guidelines for Multinational Enterprises, all adhering governments have established National Contact Points (NCPs). The NCPs have a two-fold mandate: to promote the Guidelines and to facilitate complaints from a variety of stakeholders, notably trade unions and NGOs, concerning alleged non-compliance with the Guidelines by companies registered in or operating from their countries. Over the past year the UK NCP has been substantially re-organised. It now takes the form of a bipartite body, comprising two government departments. The OECD's Trade Union Advisory Committee has consistently noted that 'tripartite NCPs have generally been more effective than others', referring specifically to the incorporation of trade unions.Under the new UK NCP structure a trade union representative has a position on an NCP advisory panel. The Report of the UN's Special Representative on Human Rights and TNCs specifically endorsed the OECD Guidelines as a useful mechanism for addressing the Business and Human Rights agenda. But the Special Representative noted also that the Guidelines have 'too often failed to meet this potential'[377].

    "The NCPs are potentially an important vehicle for providing remedy. However, with a few exceptions, experience suggests that in practice they have too often failed to meet this potential. The housing of some NCPs primarily or wholly within government departments tasked with promoting business, trade and investment raises questions about conflicts of interest. NCPs often lack the resources to undertake adequate investigation of complaints and the training to provide effective mediation. There are typically no time frames for the commencement or completion of the process, and outcomes are often not publicly reported. In sum, many NCP processes appear to come up short"[378].

  3.4  In the case of the G4S complaint, however, the procedure appears to have worked well, and there are lessons to be learned for future cases. For the first time in the history of the office, the UK NCP appointed an arbitrator, John Mulholland to manage a formal mediation and conciliation process. Mr Mulholland brought the parties together in a series of meetings which resulted in a voluntary settlement, and to the conclusion of a global framework agreement. It would be a mistake to exaggerate the importance of this process, as other factors were at work in helping UNI secure a global agreement with the company, including the global campaign against the company. Nevertheless, it would be quite wrong to under-estimate the work of the NCP in the United Kingdom, with Christy Hoffman from UNI advising us that

    Initially, the OECD process legitimized our complaints about the G4S global operations and this was a very important element. Subsequently, the mediationmeant that both sides in the dispute had to sit down face to face, peel away the rhetoric and try to grapple with some difficult problems which affected thousands of workers.Once some good will was established, the step towards a global relationship for handling similar issues in the future was a natural one. It is possible that we would have reached a global agreement in any event, but the role of the OECD mediator helped to speed up the process.A critical element of the parties' willingness to negotiate was the power of the mediator to issue a recommended settlement, which would have been difficult for either party to reject. Without that authority, I am less confident that the process would have beeneffective.


  4.1  Although we began this submission with an account of the allegedly controversial conduct of G4S, the matter did have a good outcome, a global framework agreement being concluded between G4S, UNI and the GMB (the British trade union with which G4S has a recognition agreement) on 11 December 2008. Indeed, this is thought to be the first such agreement between a British based multinational and a global union federation, though UNI has posted 22 such agreements on its website with a range of other (European based) multinational corporations. These include Carrefour, Danske Bank, and France Telecom.[379] These agreements first emerged in the mid 1990s, with a landmark deal being struck by another global union federation (the International Union of Foodworkers) and Accor.[380] These agreements - which are in some respects a response to skepticism about unilateral and voluntary company codes of conduct, which now litter the multinational corporate scene, and which are largely discredited as unenforceable pious declarations of good intent -typically commit the companies concerned to respect various labour standards (usually the ILO standards) throughout their global operations. The G4S agreement is an advanced version of the genre, and to that extent it is to be highly commended, though the campaign to secure the agreement was hard - fought, raising questions about the role of the State in encouraging or requiring its multinational companies to negotiate and conclude agreements of this kind as a matter of good practice rather than as a resolution of a transnational industrial dispute.

  4.2  Under the term of the agreement the company undertakes to respect rights established through the core labour standardsof the ILO 'where legally possible', these rights being defined as Conventions 87 and 98 (freedom of association); 29 and 105 (forced labour); 138 and 182 (child labour); and 100 and 111 (discrimination at work). So far as the first of these is concerned, the agreement proceeds in some detail to commit the company to support 'the rights of employees to join and be represented by a union of their own choosing', and to work with UNI in defined ways 'to support these rights'. These defined ways include

    — G4S will not oppose the right of employees to join or not to join a trade union, and on request will 'communicate to employees that they are entitled to a free choice over whether or not to join and become active in a union';

    — Both G4S and UNI committed to work with national affiliates and managers in order to enable freedom of association to be exercised in a non confrontational environment, avoiding misunderstanding and minimizing conflict';

    — G4S agreed 'specific access arrangements for local unions to explain the benefits of joining and supporting the union', any such access to vary according to 'local legal and practical considerations';

    — G4S agreed to recognize 'representative and legitimate trade unions', and to this end the agreement provided that 'the parties should agree a fair and expeditious system for checking support for the union'.

  The agreement makes it explicit that freedom of association includes the 'right of unions to be recognized for the purposes of collective bargaining'.

  4.3  In addition to questions of trade union membership and recognition, the agreement also addressed a wide range of other employment related matters, the company undertaking to respect the OECD Guidelines (which as already pointed out, go some way beyond the ILO Declaration of 1998). Thus, it is expressly stated that terms and conditions of employment for each country in which G4S operates 'will be at least as favourable as the legal minimum standards set out in each country for working hours, pay, health & safety and holidays'. The agreement also provides, however, that 'over time', the parties to the agreement 'wish to drive up terms and conditions for G4S employees', to ensure not only that the company attracts the best people but also that it 'has a positive impact on the wider communities in which it operates'. Alongside this commitment to comply with the law and the aspiration to do better, there is a parallel commitment that 'negotiated terms and conditions should provide at least a living wage while securing a work life balance for employees'. One problem recognized in the agreement is the competitive nature of the business in which the company operates and its perceived need to maintain its market share.Here the agreement addresses the problem of high standards leading to G4S being undercut by its competitors which may not be committed to principles of this kind. As a result the agreement provides that 'the local union and management team will develop a joint strategy and action plan to monitor and raise standards among all of the companies in the market and create an environment in which G4S will be able to raise standards without compromising its competitive position'.

  4.4  Finally, the agreement also deals with implementation and the resolution of disputes between the parties. Under the terms of the agreement G4S accepts, first the need for transparency and awareness, it being provided that all three parties 'jointly commit to publicise the agreement through the union membership and corporate structure respectively''. Secondly, G4S accepts responsibility for its implementation across the business, and undertakes to ensure that managers 'support the rights' it establishes. Any serious contraventions of the agreement by managers are to be dealt with under the appropriate G4S disciplinary procedure. Thirdly, it is recognized that their may be disputes about the interpretation or application of the agreement, and a procedure is established for resolving such disputes. The procedure is a typical industrial relations procedure, with disputes to be addressed initially at the local level, working up to the special review procedure established by the agreement, which may, if unable to resolve the dispute, refer the matter to a 'neutral arbiter to find a mediated solution'. Fourthly, the parties agreed to meet regularly (twice a year) to consider progress under the agreement under the aegis of the Review Meetings for which provision is made in an Appendix. Finally, the agreement is stated unequivocally not to be legally binding, a provision which is consistent with the normal practice of collective agreements in British law (albeit unusual in other legal systems). The clearly expressed statement to this effect is already implied by law, assuming that the agreement falls within the definition of a collective agreement under the Trade Union and Labour Relations (Consolidation) Act 1992 (sections 178 and 179).


  5.1  ICTUR believes that a number of important lessons can be learned from the experience of this particular story, which as we happily acknowledge has had a good ending (so far). The starting point, however, is that the allegations against the company, the role of the OECD Guidelines, and the concluding of a global framework agreement arose in the context of the changing global situation in which legal, political and economic power is moving from nation states to TNCs. The current economic downturn may offer some respite from this development, but is unlikely to reverse it. Yet while power is gravitating inexorably to a transnational plain, so international legal standards (such as core ILO Conventions) remain addressed to national governments, which may not be powerful enough to take on the TNCs operating in their territory, with the annual turnover of some of the TNCs exceeding the GDP of many of the countries in which they operate.[381] This suggests to us that there is a need for greater control over TNCs by national law, but more importantly a role for the better regulation of such bodies in international law. If it is possible to contemplate the global regulation of the banking industry, it ought also to be possible to contemplate the regulation of the employment conditions of TNCs, at least to the extent of ensuring that these accumulations of economic power comply with minimum international labour standards.

  5.2  As a minimum, ICTUR believes that British based TNCs should be required to accept as a matter of law that they have human rights obligations, and as a corollary to adopt Business Ethics Policies. However, these policies should be required to comply with prescribed legal standards (notably the OECD Guidelines), and they should be subject to independent scrutiny and supervision on a regular basis.The human rights reports of individual companies should be published, and appropriate penalties should be contemplated for those companies found to be in serious breach of human rights obligations. In addition, ICTUR believes that any such obligation should coincide with a strengthening of the complaints mechanisms under the OECD Guidelines. Although the Guidelines have been strongly criticized for a number of reasons, they were shown to have played a valuable role in the G4S case, though we are under no illusion that the union (UNI) came in to the process from a position of considerable strength, having conducted an effective transnational campaign against the company. Nevertheless, it is important to embrace some of these criticisms with a number of initiatives: (i) the government ought to make the guidelines more visible; (ii) the government should offer more in-house company training and education about the guidelines; (iii) the ILO principle of tri-partism should be at the heart of administration of the guidelines in the United Kingdom (with the government's interest represented by DfD as well as BERR); (iv) an office independent of government should be established for the operation, administration and supervision of the guidelines; and (v) the development of dispute resolution mechanisms of the kind deployed in the G4S complaint should be continued.

  5.3  More fundamentally, however, steps need to be taken to require TNCs to enter into agreements with GUFs, just like companies operating at national level can be required by national law to enter into recognition agreements with representative trade unions. These latter provisions were introduced in the United Kingdom by the Employment Relations Act 1999 (and they have parallels in other countries), and are now strongly reinforced by the decision of the European Court of Human Rights in Demir and Baykara v Turkey,[382] in which the Grand Chamber appears to hold not only that the right to collective bargaining is now an essential feature of the right to freedom of association under article 11 of the ECHR, but that States are under a duty to have in place a collective bargaining procedure that complies with minimum international labour standards. As the Court pointed out in a crucial passage in its its judgment:

    The absence of the legislation necessary to give effect to the provisions of the international labour conventions already ratified by Turkey, and the Court of Cassation judgment of 6 December 1995 based on that absence, with the resulting de facto annulment ex tunc of the collective agreement in question, constituted interference with the applicants' trade-union freedom as protected by Article 11 of the Convention (Emphasis added).[383]

  This suggests to us that it will be difficult for an incoming Conservative government to repeal the existing procedure without putting something in its place, and that business friendly aspects of the existing procedure are ripe for challenge in the courts with a view to their removal (such as the arbitrary denial of collective bargaining rights to workers employed in businesses with less than 21 workers).[384]

  5.4  A parallel legal obligation of TNCs to deal with GUFs could emerge in one of two ways:

    — in the short term, as a unilateral act of the British Parliament to introduce a procedure under domestic law which requires TNCs headquartered in the United Kingdom not only to develop and implement the Business Ethics Policies referred to in paragraph 5.2 above, but to do so with the negotiated agreement of an appropriate GUF at the request of the latter;

    — in the long term, steps could be taken to initiate and support a long overdue recognition in international law the right of GUFs to enter into transnational bargaining with TNCs about compliance with international labour standards.[385]At the present time, international labour law is at a very primitive stage of development, drafted for an economy in the mid 20th rather than the early 21st century.

  There is thus a need to complement existing international labour standards, with measures which guarantee a right to organize, a right to collective bargaining and a right to collective action, at transnational level. The G4S experience provides a compelling reason for these international standards to be revised, to reflect the world as it is now, rather than the world as it was sixty years ago. It ought to be possible to secure a global framework agreement as a matter of corporate obligation underpinned by international law, rather as a result of transnational trade union pressure.

Daniel Blackburn (Director)

K D Ewing (Vice-President)

1 May 2009

362   G4S, Annual Report (2008). Back

363   Ibid. Back

364   Kenya Guards and Allied Workers' Union v Security Guard Services and Kenya Union of Commercial, Food and Allied Workers (Cause No 70/2002. Industrial Court of Kenya, p 22. Back

365   Kenya Guards and Allied Workers' Union v Factory Guards Ltd (Cause No 8/2004, Industrial Court of Kenya), p 17. Back

366   UNI, Submission to R W Box, UK National Contact Point for OECD Guidelines for Multinational Enterprises, 12 December 2006, p 6. Back

367   Ibid. Back

368   ILO Freedom of Association Committee, Complaint against the Government of Indonesia presented by the Indonesian Association of Trade Unions (ASPEK Indonesia) Report No. 348, Case No. 2494, para 959. Back

369   See Guardian, 12 August 2006. Back

370   House of Commons, Public Accounts Committee, 15 March 2006, Q 75.For the company response, see ibid, Q 78. Back

371   UNI, Submission, above, p 10.It is claimed there that while 'G4S eventually, under international pressure, accepted [the] Supreme Court decision and fulfilled its legal obligations to its workers, it refused to meet these obligations for over a year'. Back

372   ILO Freedom of Association Committee, Complaint against the Government of Indonesia presented by the Indonesian Association of Trade Unions (ASPEK Indonesia) Report No. 348, Case No. 2494. Back

373   UNI, Submission, above, p 7. Back

374   Wackenhut Corporation v SEIU, Case 5-CA-31927 (20 April 2005). Additional cases are cited in UNI, Submission, above, pp 8 - 10. Back

375   UNI, Submission, above. Back

376   Ibid, p 4. Back

377   J Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights: Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and other Business Enterprises, A/HRC/8/5, 7 April 2008,paras 98-99. Back

378   Ibid. Back

379   For a study of some such agreements, see K D Ewing, 'International Regulation of the Global Economy - The Role of Trade Unions', in B Bercusson and C Estlund (eds), Regulating Labour in the Wake of Globalisation (2007), ch 10. Back

380   See J Wills, 'Bargaining for Space to Organise in the Global Economy: A Review of the Accor - IUF - Trade Union Rights Agreement' (2002) 9 Review of International Political Economy 675 - an outstanding study. Back

381   See S Haseler, The Super-Rich - The Unjust New World of Global Capitalism (2000). Back

382   Application No. 34503/97, 12 November 2008. See also Enerji Yapi-Yol Senv Turkey, 21 April 2009 (ECtHR recognises the right to strike under ECHR, article 11), with potentially important implications for litigation under the Human Rights Act 1998. Back

383   Ibid, para 157. Back

384   See ILO, Committee of Experts, Individual Observation Concerning Right to Organise and Collective Bargaining Convention, 1949 (No 98) United Kingdom (2009) (raising questions about a number of aspects of the trade union recognition procedure that would now seem ripe for challenge in the light of Demir and Baykara). Compare R (NUJ) v CAC [2005] EWCA Civ 1309. Back

385   See K D Ewing and T Sibley, International Trade Union Rights for the New Millenium (ICTUR/IER, 2000). Back

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